Janus v. American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”)

OVERRULING ABOOD

Janus argues that Abood should be overruled for several reasons. First, Janus asserts that Abood incorrectly held that bargaining with the government is not political speech. According to Janus, bargaining with the government is tantamount to lobbying because bargaining subjects often are important political issues, such as wages and pensions, and have significant civic consequences including raising taxes. Thus, Janus argues, agency fee requirements compel an individual to support a political advocacy group, impinging on the individual’s First Amendment rights.Second, Janus asserts that Abood should be overruled because it fails to apply the correct standard of judicial review. Janus explains that Supreme Court decisions such as Harris and Knox, which came after Abood, have applied heightened scrutiny to compelled association and speech in determining whether agency fees and other expenditures for speech are narrowly tailored or the least restrictive means to achieve a compelling state interest. Third, Janus contends that the framework set forth in Abood is unworkable because chargeable and nonchargeable expenses are difficult to distinguish and give unions unfettered discretion in determining what they charge non-members, which further damages non-members’ First Amendment rights. Lastly, Janus claims overruling Abood will not upset any reliance interests because employees will benefit from free choice, nor will the overruling undermine other precedent, because Abood is applied so narrowly as to not affect other agency fee cases.

In opposition, Madigan and Hoffman, and AFSCME dispute that Abood should be overruled and argue that there is no justification for departing from stare decisis, or the doctrine of precedent. According to AFSCME, Illinois state law requires collective bargaining to limit discussions to non-political issues such as salary, vacations, and parking, and are thus distinct from political lobbying. Thus, says Madigan and Hoffman, and AFSCME, Abood remains consistent with the First Amendment and correctly decided that government employees may be required to pay costs associated with exclusive representation but may not be required to subsidize political or ideological activities. Second, AFSCME, and Madigan and Hoffman explain that the Court does not apply strict scrutiny on cases involving the government, as employer, regulating employees’ speech, thus Abood did not “fail” to apply heightened scrutiny. Madigan and Hoffman also contend that Abood’s framework is workable and that lower courts have not struggled with distinguishing chargeable and non-chargeable expenses, but even if the courts were having difficulty, the Court should clarify the standard instead of upending precedent.Finally, Madigan and Hoffman, and AFSCME argue that overruling Abood would disturb significant reliance interests and countless collective bargaining agreements at stake, including that of the unions, employees, public employers, and States; the legislation of twenty-two states; and several areas of jurisprudence concerning how the government may deal with its citizen employees.

HEIGHTENED SCRUTINY

Janus claims that agency fee requirements fail both strict scrutiny and exacting scrutiny, and therefore violate non-member employees’ First Amendment rights. Janus disputes that agency fees are necessary for exclusive representation because the status alone as exclusive representative gives the union various benefits, powers, and advantages in recruiting. Janus also argues that these benefits refute Abood’s presumption that exclusive representation may burden unions or benefit union nonmembers. Due to these benefits, Janus claims that the union voluntarily assumes any limited obligations that accompany exclusive representation without a need for agency fees. Janus also asserts that forcing employees to pay for representation they did not freely choose is not the least restrictive means for the government to engage in collective bargaining; instead, there are viable alternatives to mandatory agency fees that do not infringe on non-member rights or harm their interests as agency fees do. Janus further argues that there is no compelling state interest which justifies the agency fee provisions because agency fees are not necessary for exclusive representation. Moreover, Janus claims that the government does not have a compelling interest in bargaining with unions.

In opposition, Madigan and Hoffman, and AFSCME argue that agency fees are not subject to heightened scrutiny because there is a difference between the government as an employer and the government as a regulator. According to Madigan and Hoffman, and AFSCME, it is constitutionally permissible for States to place reasonable conditions on government employment, including those that restrict speech. Moreover, Madigan and Hoffman contend that the government has never been required to show that these conditions are the least restrictive means to achieve its goals. Madigan and Hoffman further argue that the government’s interest in “effective operation” of a mandatory association warrants limited infringement of employee rights, and agency fees support the costs of a mandatory association. Additionally, agency fees used to support speech directed to the government in a non-employer context are subject to First Amendment scrutiny, and both Madigan and Hoffman, and AFSCME assert that Abood’s standard is grounded in this distinction. Furthermore, Madigan and Hoffman, and AFSCME both argue that the government does have a substantial interest in bargaining with unions because States, as employers, have a strong interest in dealing with an exclusive representative as reflected in the States’ legislation, as well as ensuring that the representative is “fairly and adequately” funded by preventing a situation where members subsidize non-members. Finally, Madigan and Hoffman argue that agency fees are a limited impingement on First Amendment rights because the fee only supports speech within the employment setting, does not restrict an employee’s freedom of expression, and does not force a nonmember into an expressive association with the union.